R v Michael John Hardes

[2005] NSWDC 4

CITATION:	R v Michael John HARDES [2005] NSWDC 4
HEARING DATE(S):	22/08/2005-30/08/2005 Trial 21/10/2005 Sentence
JUDGMENT DATE:	21 October 2005
EX TEMPORE JUDGMENT DATE:	21 October 2005
JURISDICTION:	Criminal
JUDGMENT OF:	Berman SC DCJ
DECISION:	See Paragraphs [22] & [23]
CATCHWORDS:	Criminal Law - Sentence - Supply commercial quantity of methylamphetamine
PARTIES:	Crown Michael John Hardes
FILE NUMBER(S):	03/11/0537
COUNSEL:	M. Ainsworth (Hardes)
SOLICITORS:	NSW DPP Michael Croke & Co

SENTENCE

1 HIS HONOUR: Michael John Hardes was convicted by a jury on one count of supplying a commercial quantity of methyl amphetamine. He had been indicted on a charge of supplying a large commercial quantity of methyl amphetamine but the jury acquitted him of that offence, convicting him of the alternative.

2 The Crown called evidence of a number of specific acts of supply but in light of the way the Crown case was run the verdict returned by the jury necessarily means that they were not satisfied beyond reasonable doubt of most of that evidence.

3 The Crown case so far as the alternative was concerned was based on this evidence. Mr Brett Taylor was a dealer in methyl amphetamine. Shortly before he was to go overseas he gave the accused two half pound packages of that drug. One was to be distributed by the accused to Mr Taylor’s customers and the other was to be given to drug dealers by the name of Walsh and Love in the event that they ran out of methyl amphetamine while Mr Taylor was overseas.

4 On 1 July 1999 the police searched the offender’s premises and they found two plastic bags of methyl amphetamine in the accused’s shed. I am satisfied beyond reasonable doubt that those two bags found by the police were the two bags given to the offender by Mr Taylor. Together they weighed approximately 440 grams. They were reasonably pure as well. They would have had to have been cut significantly before they were at street level purity.

5 Also found during the police search were two sets of electronic scales. Although those particular scales were destroyed by police, the model number of one of them was recorded. Scales of the same model were found in the accused’s premises in 2002 and so I am able to satisfy myself as to the appearance of one of the sets of scales found by police in 1999. I am satisfied beyond reasonable doubt that those scales were to be used by the offender as part of his activities distributing methyl amphetamine to drug users on behalf of Mr Taylor. I reject the explanation for the possession of those scales which the offender gave in the trial.

6 I should make it clear that I will sentence the offender on the basis that the only methyl amphetamine the offender supplied or had for the purposes of supplying was the 440 grams of methyl amphetamine found in the accused’s shed. I will not sentence him on the basis that he has performed any other act of supply. It seems to me that is the only way in which I can sentence the offender consistent with the jury’s verdict.

7 The offender was charged in relation to that methyl amphetamine some time earlier. He was discharged at committal but spent some time in custody until his charge was dismissed. Of course that custody is solely referrable to the charge on which the offender has now been convicted and so I will take the time in custody into account and back date the sentence accordingly because he has spent seventy days in custody. It is agreed that I should commence the sentence seventy days from the time he went into custody this time, that being 30 August 2005, so that the appropriate commencement date for the current sentence is 21 June 2005.

8 The offender has a criminal history. Although there are a number of matters, they are all relatively minor. The offender has not earlier received any form of gaol sentence and in fact the only way that his criminal matters have been dealt with in the past has been by way of fine or bond.

9 The offender was born in 1967. He had something of a turbulent upbringing due to the alcohol abuse problems which his mother and stepfather experienced. He has no awareness of his natural father. He experienced a traumatic event at a young age when his grandmother with whom he had been spending a considerable period of time (in the light of the problems experienced by his mother and stepfather), died suddenly while hanging out the clothes. He left school at year 9 and then commenced work firstly as a trolley boy with Woolworths and then as a labourer.

10 At one stage he fell out with his family and was out of work for a number of years. During that time he became involved in heavy drinking and illicit drug use. He managed to clean himself up a bit and he rejoined the workforce and did a number of other jobs such as welding and working with his stepfather.

11 In 1999 these drugs were found by police and as I have said, he was charged by them. He has been unemployed since that time. For a little while he had his own tattoo business and had a brief period driving for a labour hire company.

12 For a number of years he was a member of the Nomads motor cycle club. In fact it was apparently through his involvement with this club that he became involved in the offence for which he must now be sentenced. He was a more junior member of the club than both Taylor and Walsh. As a more junior member he was expected to obey the directions of the more senior members. That is a significant matter to be taken into account when it is remembered that his involvement in the present offence came about when Taylor told him what to do. It is to be very firmly borne in mind that by receiving these drugs with the intention of supplying them, he was doing what Taylor required of him. He was not operating his own business but assisting Taylor in the running of his. He was not supplying his customers but supplying Taylor’s.

13 Nevertheless this is a serious offence. The problems which are caused to those who use drugs and their families are notorious. For this reason that the Courts have taken a very dim view of those who are prepared to involve themselves in the distribution of drugs as the offender was prepared.

14 A psychologist report suggests that to a large extent the offender has turned his life around since 1999. At one stage I was of the view that that opinion could not sit comfortably with the offender’s criminal history but on reflection it is to be seen that the offences that the offender has committed since 1999 are all relatively minor. They are certainly minor when compared to the offence which the offender must now be sentenced.

15 One very important matter which has been referred to extensively in the material before me concerns the consequences to the offender of a motor vehicle collision which occurred when the offender was riding as a pillion passenger on a motor cycle. His left leg was severely damaged in that collision and the consequences for him have been quite serious. It seems that almost half of the people or about half of the people who suffer an injury similar to that suffered by the offender actually lose their leg. It demonstrates the severity of the injury which Mr Hardes has suffered. He is now left with ongoing disability and ongoing pain. One of the important consequences for the offender of the injury to his left leg is that he will do his time in custody harder than would otherwise have been the case. In many ways the offender is something of a different person to the person who committed this offence more than six years ago. I have placed considerable weight on the fact that a great deal of time has passed since the offender was first arrested way back in 1999.

16 The offender also pleaded guilty today to two other matters. One is an offence of possessing a crossbow. The other is an offence of possession of about 56 grams of cannabis leaf. Both of those items were found by police when they re-arrested the offender on 15 May 2002.

17 Mr Ainsworth suggests that it would be appropriate for the offender to receive no extra punishment for having committed those two offences. I do not agree. There will be a short period of accumulation to cover the criminality which those two charges represent.

18 Mr Ainsworth has referred to a number other sentences imposed on people who have pleaded guilty to offences all arising out of the drug supply activities of Walsh and Love. These people were not co-offenders and so the principles of parity do not directly apply. But of course I have to bear in mind those sentences in formulating the appropriate sentence for this offender. I note that the offence which the offender is to be sentenced is supplying a commercial quantity of methyl amphetamine rather than supplying a large commercial quantity of methyl amphetamine which was more common in the case of those other offenders. It is important also however to bear in mind that many of those other people were entitled to a discount for pleading guilty. The offender is not to be punished for not pleading guilty, but it is to be remembered that he is not entitled to any discount for having done so. I am unable to find that the offender is remorseful for what he has done or that he has good prospects for rehabilitation. One of the most significant factors in preventing me from being able to assess his prospects for rehabilitation as good is his failure to acknowledge his guilt of the present offence. In those circumstances it is difficult to find, and I cannot find that there is a significant likelihood that given the same circumstances the offender would take a different attitude.

19 One specific aggravating feature which I should refer to concerns the fact that the offender was on a bond at the time of this offence. This was a bond for assault and he was two and a half years into a three year bond. So although it is an aggravating feature it is of relatively minor importance.

20 There is no suggestion that the offender has made any significant financial gain or was intending to make any significant financial gain had he been able to supply the drugs as Taylor asked him to. He was, and I appreciate I’ve made this point a number of times, simply doing what Taylor told him to do.

21 Mr Ainsworth asks that I find special circumstances. Although this will not be his first time in gaol because he did serve seventy days in custody earlier, that time in custody was related of course to this offence. Perhaps more importantly I am prepared to find special circumstances because of the consequences to the offender of the injury he suffered to his leg in the motor cycle accident.

22 For the offences of possessing a crossbow and possessing cannabis, the offender is sentenced to imprisonment for a fixed term of six months to date from 21 June 2005. Those terms are fixed terms because of the sentences I will shortly impose on the other matter.

23 For the offence of supplying a commercial quantity of methyl amphetamine the offender is sentenced to imprisonment for three years with a non-parole period of eighteen months to date from 21 September 2005. Thus the overall non-parole period is one of twenty-one months and the overall total term is three years and three months. The offender is eligible to be released to parole on 20 March 2007.

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